In an opinion yesterday, Judge McMahon granted the government summary judgment in two FOIA lawsuits (previous coverage here) seeking disclosure of (among other things)  a secret memo setting forth the legal grounds for drone strikes that killed U.S. citizen Anwar al-Awlaki and his teenage son.

Judge McMahon recognized that the targeted killing of U.S. citizens raised questions worthy of public discussion but stated the law did not authorize her to order the information released:

The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men. The Administration has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions. More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable “hot” field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated. It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty.

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret.

In a case we’ve written about before, and which has generated a great deal of public attention, the ACLU today opposed the government’s motion for summary judgment, and sought partial summary judgment of its own, in its case seeking information about the government’s use of drones and other methods to effect the targetted killing of U.S. citizens abroad.  The ACLU summarizes its argument in the preliminary statement of its brief:

This case concerns a Freedom of Information Act (“FOIA”) request for basic information about the most extreme authority our government can claim: the authority to kill its own citizens without charge or trial. The FOIA request also seeks information about the government’s actual killings of three U.S. citizens in Yemen last year. The government’s claimed authority has generated immense public concern and debate, a debate that the President, members of his cabinet, and other senior officials have joined. Top government officials have acknowledged that the government operates a targeted killing program. Officials have confirmed both that the government claims the authority to target U.S. citizens and that it has actually targeted them. Top government lawyers have discussed the purported legal basis for the targeted killing program, the President has acknowledged the killing of a U.S. citizen in an American drone strike in Yemen last year, and former Central Intelligence Agency (“CIA”) Director and current Secretary of Defense Leon Panetta has discussed both agencies’ roles in targeting U.S. citizens.

Yet, in response to the FOIA request and to this Court, Defendants Department of Justice (“DOJ”), Department of Defense (“DOD”), and the CIA claim that they cannot even confirm or deny the existence of the CIA’s targeted killing program, nor release any information about the DOD’s program. All agencies have gone so far as to deny the American public access to records setting out the government’s purported legal basis for targeting American citizens for death.

Because of the government’s official disclosures, the issues before this Court are clearcut and this case requires only the straightforward application of well-settled law. Senior officials have already acknowledged the very information at issue in this suit to the public and the press, and the government cannot therefore invoke the Glomar doctrine or the No Number, No List response to avoid its statutory obligation to release records. There is no occasion for the Court to defer to the government’s argument that harm would result from disclosing that the CIA and the military have the authority to conduct and do in fact conduct targeted killings of U.S. citizens when top executive branch officials have already made those disclosures. President Obama, for example, took credit for the killing of U.S. citizen Anwar al-Awlaki (“al-Awlaki”) within hours of his death, calling it a “tribute to our intelligence community,” (Normand Dec., Ex. H), and further stated on the Tonight Show with Jay Leno that “we were able to remove [al- Awlaki] from the field.” (Wicker Dec., Ex. 5.)

As a legal matter, the government’s acknowledgments dispose of its arguments in support of summary judgment. But even if they did not, the Glomar and No Number, No List responses would be improper because the targeted killing of individuals is not an intelligence source or method. The targeted killing program is concerned with killing of individuals, not with gathering intelligence, and therefore the government’s concern that intelligence sources and methods will be revealed by its mere acknowledgment of the program is without force. Of course, the targeted killing program might rely on undisclosed, and therefore protectable, intelligence sources and methods. But those intelligence details can be protected on a document-by-document basis, and do not warrant the sweeping non-response the government offers here.

For these reasons, the Court should deny the government’s motion for summary judgment, grant the American Civil Liberties Union’s and The American Civil Liberties Union Foundation’s (together, “the ACLU”) cross-motion for partial summary judgment, and order the government to produce records responsive to the ACLU’s request.